Appeal details
Counselvise Citation
[2014] 120 COUNSELVISE.COM (IT) 5848 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 4 month(s) 9 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
28-03-2014
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
B
Next Hearing Date
24-03-2014
Assessment Year
2006-2007
Appeal Filed On
18-11-2010
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI . . , , BEFORE SHRI N. K. BILLAIYA, A.M. AND SHRI SANJAY GARG, J.M. ! ./ I.T.A. NO. 7941/MUM/2010 ( / ASSESSMENT YEAR: 2006-07) NUSHAD NOMANBHOY 703/704, KARAN VISHAL NAGAR, MARVE ROAD, MALAD (W), MUMBAI-400 064 / VS. INCOME-TAX OFFICER-24(2)(1), BANDRA KURLA COMPLEX, MUMBAI-400 050 # ./$ ./PAN/GIR NO. AABPN 1530 D ( ! #% /APPELLANT ) : ( &'#% / RESPONDENT ) ! #% ( ) / APPELLANT BY : SHRI NISHANT THAKKAR &'#% ( ) / RESPONDENT BY : MS. NEERAJA PRADHAN * +, ( -. / DATE OF HEARING : 24.03.2014 /012 ( -. / DATE OF PRONOUNCEMENT : 28.03.2014 3 / O R D E R PER N. K. BILLAIYA, A. M.: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)-34, MUMBAI DATED 17.08.2010 PERTAINING TO ASSESSMENT YE AR (A.Y.) 2006-07. 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE AS SESSEE IS THAT THE LD. CIT(A) ERRED IN UPHOLDING THE ADDITION OF RS.1,43,449/- MADE BY THE A.O. U/S.68 OF THE ACT. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT DURING THE CO URSE OF THE ASSESSMENT PROCEEDINGS, THE A.O. NOTICED THAT THE ASSESSEE HAS SHOWN LONG TERM CAPITAL GAIN (LTCG) AT 2 ITA NO. 7941/MUM/2010 (A.Y. 2006-07) NAUSHAD NOMANBHOY VS. ITO RS.46,27,742/- IN THE COMPUTATION OF INCOME. THE A. O. FURTHER NOTICED THAT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, WHEN THE ASSE SSEE WAS ASKED TO FILE THE DETAILS OF THE LTCG IT WAS FOUND THAT THE ASSESSEE HAS CLAIMED LTCG ON SALE OF SHARES AT RS.47,71,191/-, WHICH WAS CLAIMED AS EXEMPT U/S.10( 38) OF THE ACT. ON RECEIVING NO SATISFACTORY EXPLANATION IN RESPECT OF THE DIFFEREN CE, THE A.O. ADDED RS.1,43,449/- AS UNEXPLAINED CASH CREDIT IN THE HANDS OF THE ASSESSE E. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) AND IT WAS EXPLAINED THAT DUE TO SHEER HUMAN ERROR THE LTCG ON SALE OF SHARES AT RS.47,71,191/- WAS SHOWN AS RS.46 ,27,742/-. IT WAS STATED THAT THE SAME WAS DULY VERIFIABLE FROM THE STATEMENT OF LTCG FILE D BEFORE THE A.O. THE LD. CIT(A) THOUGH WAS CONVINCED WITH THE EXPLANATION OF THE AS SESSEE, WAS OF THE OPINION THAT THE CLAIM SHOULD HAVE BEEN MADE THROUGH A REVISED RETUR N OF INCOME. THE LD. CIT(A) OBSERVED THAT THE ASSESSEE HAS NOT CLAIMED THE EXTR A EXEMPTION IN THE ORIGINAL RETURN AND NO REVISE RETURN HAS BEEN FILED. THEREFORE, NO BENE FIT CAN BE GIVEN TO THE ASSESSEE AND UPHOLD THE ADDITION OF RS.1,43,449/-. AGGRIEVED BY THIS THE ASSESSEE IS BEFORE US. 3. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENT ION TO THE DETAILS OF THE SHARES AND MUTUAL FUND INVESTMENT AND POINTED OUT THAT THE LTC G WAS ACTUALLY AT RS.47,71,191/- WHICH WAS INADVERTENTLY CLAIMED AT RS.46,27,742/-. THE LD. COUNSEL STATED THAT AS PER THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF CIT VS. PRUTHVI BROKERS AND SHAREHOLDERS PVT. LTD. [2012] 349 ITR 336, THE JURISDICTION OF THE APPELL ATE AUTHORITIES TO ENTERTAIN A CLAIM HAS NOT BEEN NEGAT ED BY THE HONBLE SUPREME COURT AND, THEREFORE, THE LD. CIT(A) ERRED IN NOT ALLOWING THE CLAIM OF EXEMPT OF LTCG AT RS.47,71,191/-. PER CONTRA THE LD. DR STRONGLY SUPP ORTED THE FINDINGS OF THE LOWER AUTHORITIES. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CAR EFULLY PERUSED THE ORDERS OF THE LOWER AUTHORITIES. WE FIND THAT THERE IS NO DISPUTE INSOFAR AS THE FACTS ARE CONCERNED. AS PER THE DETAILS OF SHARES AND MUTUAL FUNDS THE LTCG ON SALE OF SHARES COMES TO RS.47,71,191/-. IT IS ALSO AN UNDISPUTED FACT THAT THE SAME HAS BEEN CLAIMED AS EXEMPT AT 3 ITA NO. 7941/MUM/2010 (A.Y. 2006-07) NAUSHAD NOMANBHOY VS. ITO RS.46,27,742/-. IT IS ALSO AN UNDISPUTED FACT THAT THE CLAIM HAS BEEN DENIED ONLY ON THE GROUND THAT IT WAS NOT MADE THROUGH A REVISED RETUR N OF INCOME. THIS ISSUE IS NOW WELL SETTLED BY THE DECISION OF THE HONBLE JURISDICTION AL HIGH COURT IN THE CASE OF PRUTHVI BROKERS AND SHAREHOLDERS PVT. LTD. (SUPRA). RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT, WE DIRECT THE A. O. TO ALLOW THE CLAIM OF EXEMPTION U/S.10(38) OF THE ACT IN RESPECT OF LTCG ON SALE OF SHARES AT RS.47,71,191/-. WE ACCORDINGLY DIRECT THE A.O. TO DELETE THE ADDITION OF RS.1,43,449/-. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. !42-5 64- ( ! + 7 - ( - 8 ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 28 TH , 2014 SD/- SD/- (SANJAY GARG) (N. K. BILLAIYA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER * , MUMBAI; 9 DATED : 28.03.2014 +.../ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. ! #% / THE APPELLANT 2. &'#% / THE RESPONDENT 3. * :- ( ! ) / THE CIT(A) 4. * :- / CIT - CONCERNED 5. =+> &-?6 , ! . ?62 , * , / DR, ITAT, MUMBAI 6. @ A, / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , * , / ITAT, MUMBAI
